Disposed

The Bangalore Development Authority v. Smt B N Kokila

Karnataka HC18 Mar 2024RFA/199/2011

Case brief

AI extract

What is this about?

BDA appealed against a decree restraining it from dispossessing a plaintiff claiming under a registered conditional sale deed. The High Court set aside the finding of lawful possession for non-compliance with the BDA Allotment Rules, but permitted BDA to take lawful steps for dispossession while keeping title contentions open.

What did the court decide?

Appeal disposed; finding of lawful possession set aside; BDA permitted to take action for dispossession per law if plaintiff fails to establish title; all contentions kept open.

The Bangalore Development Authority Vs Smt B N Kokila — Landlord and Tenant | Karnataka HC (2024)

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1 - NC: 2024:KHC:11049 RFA No. 199 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE REGULAR FIRST APPEAL NO. 199 OF 2011 (INJ)

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BETWEEN:

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THE BANGALORE DEVELOPMENT AUTHORITY REPRESENTED BY ITS COMMISSIONERT CHOWDAIAH ROADBANGALORE-20

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THE ASSISTANT EXECUTIVE ENGINEER WARD OFFICE, BDA COMPLEXKORAMANGALABANGALORE-34

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…APPELLANTS

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(BY SRI. AJAY KUMAR M.,ADVOCATE)

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AND:

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Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA

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SMT B N KOKILA W/O S RADHAKRISHNA, MAJORAGED ABOUT YEARSOCC:HOUSE HOLD WORKR/O NO.30, 7TH C CROSS, 16TH MAIN4TH BLOCK KORAMANGALA BANGALORE-34

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…RESPONDENT

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(BY SRI. H KANTHARAJ.,SENIOR ADVOCATE FOR;

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SRI. SOMANNA B S., ADVOCATE)

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THIS RFA IS FILED U/S 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.10.2010 PASSED IN O.S.NO.3929/2001 ON THE FILE OF THE XXVII-ADDL. CITY CIVIL JUDGE, BANGALORE, DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2024:KHC:11049 RFA No. 199 of 2011

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JUDGMENT

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Heard the learned counsel for the appellants as well as the learned counsel for the respondent.

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This appeal is by defendants invoking Section 96 of Code of Civil Procedure. O.S.No.3929/2001 on the file of XXVII Additional City Civil Judge, Bangalore, is decreed in terms of impugned judgment and decree dated 28.10.2010.

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The suit for injunction is decreed as under:

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"Suit of the Plaintiff is decreed. Defendants, their men, agents or anybody on their behalf, are hereby restrained from interfering into the peaceful possession and enjoyment of the suit schedule property by the plaintiff and also restrained from dispossessing her from the suit schedule property and also restrained from demolishing the suit schedule property, without following due process of law".

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The plaintiff filed a suit for injunction against defendants on the premise that the suit schedule property viz., the house property bearing No.30, located in 7^th "C" Cross, 16^th Main, 4^th "B" Block, Koramangala, Bangalore bounded on the

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NC: 2024:KHC:11049 RFA No. 199 of 2011

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East by site No.31, South by Site No.33, North by road and west by site No.29 is sold to the plaintiff by defendant No.1 under registered conditional sale deed dated 27.08.1992.

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The plaintiff claims that the suit property is sold to him by defendant No.1 under registered lease-cum-sale deed dated 27.08.1992. It is also claimed that on 29.08.1992, the possession certificate was issued and the plaintiff was put in possession of the said property. The plaintiff has not stated as to whether he registered himself to enable himself to apply for allotment of site by defendant No.1.

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Plaintiff also claims that on 14.10.1993, the registered conditional sale deed was executed in his favour by defendant No.1.

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The defendant-BDA has filed written statement and disputed the claim of the plaintiff. The defendants disputed the possession certificate, the execution of registered lease cum sale deed and also registered conditional sale deed. The defendants took up a specific stand that the documents relied upon by the plaintiff are concocted and forged one and further took a stand that those documents cannot be relied upon.

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4 - NC: 2024:KHC:11049 RFA No. 199 of 2011

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The Trial Court has framed the issues as under:

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1. Whether plaintiff proves her lawful possession over the suit schedule property as on date of the suit?

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1. Whether the plaintiff proves the alleged interference of the defendants in the suit schedule property?

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1. Whether the plaintiff is entitled for the relief of Permanent injunction against the defendants as prayed?

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1. What decree or order?

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The Trial Court has given a finding on issue No.1

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stating that the plaintiff is in lawful possession of the suit schedule property. However, while passing the decree, the Trial Court has granted injunction against the defendants and protected the plaintiff's peaceful possession and enjoyment over the suit schedule property till the defendants take appropriate steps to dispossess the plaintiff and demolish structure in the manner known to law.

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Learned counsel appearing for the appellants would

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contend that under Rule 8 of BDA (Allotment of Sites) Rules 1984, (for short Rules, 1984) a procedure is prescribed for applying for allotment of sites and registration of sites. He

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5 - NC: 2024:KHC:11049 RFA No. 199 of 2011

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would further submit that a person, who seeks allotment must get himself registered under the said provision, thereafter, he must apply for the site. Then the BDA has to take decision for allotment based on the eligibility criteria fixed under the Rules, 1984. He would submit that the plaintiff has not pleaded anything about plaintiff registering herself under Rule 8 and applying for allotment of site. He would also submit that there is no procedure under the said Rules of 1984 for executing conditional sale deed before expiry of the term/tenure contemplated under the lease-cum-sale agreement. Thus, he would contend that the Trial Court could not have held that the plaintiff is in lawful possession of the suit property.

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Sri. H.Kantharaj, the learned Senior Counsel appearing for the plaintiff/respondent would contend that the documents produced by the plaintiff are registered documents, registered in accordance with law. He would also submit that the registration would carry presumption that all the requirements contemplated under the Rules, 1984 referred to above are complied by the plaintiff as well as the BDA, as such, the Trial Court is justified in holding that the plaintiff is in lawful possession of the suit schedule property.

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NC: 2024:KHC:11049 RFA No. 199 of 2011

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This Court has considered the contentions raised at the Bar.

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The following point arises for consideration:

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(i) Whether the Trial Court is justified in holding that the plaintiff is in lawful possession of the

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suit property as on the date of the suit.

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This Court has perused the materials on record and also the relevant provision of law. There is no dispute that under Rule 8 of Rules 1984, the person who seeks to apply for a site from the Bangalore Development Authority must register himself before applying for the site. As can be noticed from the pleadings as well as evidence on record, there is nothing to indicate that the plaintiff has registered herself under Rules 1984 and there is nothing on record to show that the plaintiff has applied for a site. Nevertheless, there is a registered conditional sale deed in favour of the plaintiff. The BDA Rules also contemplate a registered lease-cum-sale deed before the conditional sale deed is executed. Interestingly, the plaintiff has not produced the registered lease-cum-sale deed said to have been executed in favour of the plaintiff, though, there is a pleading in this regard. It is relevant to note that the

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NC: 2024:KHC:11049 RFA No. 199 of 2011

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defendants have disputed the existence of alleged registered lease-cum-sale deed in favour of the plaintiff.

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This being the possession, this Court is of the view that the finding of the Trial Court that the plaintiff is in lawful possession of the suit property is not based on the materials available on record. The Trial Court has not referred to the Rules 1984, which have to be complied before allotting a site in favour of the applicant. Without reference to the aforementioned Rules, the Trial Court could not have given a finding that the plaintiff is in lawful possession of the suit property. Thus, the finding that plaintiff is in lawful possession is set aside.

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Nevertheless, the records would clearly indicate that the plaintiff is in possession of the suit property and has put up a structure. This fact is not in dispute. However as the suit was one for simple injunction, the Trial Court did not go into the question of title. Issues are not framed in this regard.

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Learned counsel for the appellants would contend that when the defendant-Authority was about to take a legal action against the plaintiff for her illegal act in occupying the

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NC: 2024:KHC:11049 RFA No. 199 of 2011

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property, the suit is filed and injunction is obtained against the defendants from proceeding further.

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As can be noticed from the impugned judgment and decree, it is very much apparent that the Trial Court has left the option open for the defendant-Authority to take appropriate action against the plaintiff to dispossess the plaintiff in accordance with law.

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Under these circumstances, keeping open all the contentions of the parties, this Court is of the view, that the defendant-Authorities are permitted to take appropriate action against the plaintiff for dispossession, in case the plaintiff is not in lawful possession of the property and in case the plaintiff is not the owner of the property. If such an action is initiated, it is open to the plaintiff to establish that the property is duly allotted and sold to the plaintiff in the manner known to law. In case, the plaintiff is able to establish this contention, then the defendants shall not disposes the plaintiff from the suit property. If title is not established by the plaintiff then defendant No.1 shall proceed to take possession.

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9 - NC: 2024:KHC:11049 RFA No. 199 of 2011

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With these observations, following orders are

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passed:

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(i) The appeal is disposed of .

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(ii) All the contentions of the respective properties relating to the title over the property are kept open.

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Sd/JUDGE

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PHM

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List No.: 1 Sl No.: 19

The Bangalore Development Authority v. Smt B N Kokila

Case brief

What is this about?

What did the court decide?

The Bangalore Development Authority v. Smt B N Kokila

Case brief

What is this about?

What did the court decide?

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Statutes considered

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